The UK political system has been stirred by the Brexit process

Roch Dunin-Wasowicz

April 13th, 2018

The UK political system has been stirred by the Brexit process

Through its insistence on leaving the EU, the May government has created an immense, administrative and technical challenge for itself. Moreover, it must be completed within a perilously short timeframe. Andrew Blick (King’s College London) investigates the complications ahead of the Withdrawal Bill accounting for all the players involved.

The European Union (Withdrawal) Bill currently passing through the House of Lords is an important (though not the sole) manifestation of the difficulties faced. Through this legislation, the government seeks to repeal the European Communities Act 1972, guarantee legal continuity at the point of exit from the EU, and facilitate, in legal terms, a smooth departure from the EU.

These objectives may prove not to be practically attainable. Moreover, the effort to achieve them has already generated an exceptional degree of controversy. Areas of concern raised from various sources regarding the Bill include that it would be detrimental to general principles of rule of law and individual rights, would vest excessive delegated law-making authority in ministers, and would concentrate powers repatriated from the EU at UK level, to the cost of the devolved institutions.

To complicate matters further, in pursuit of its goals and amidst this criticism, the government must contend with a number of other players with roles of their own in the legal or political process. Motivated in part by some of the complaints about the Bill described above, each of these actors feels entitled to slow down, modify or even reverse the process of Brexit. They will use particular procedures at their disposal; with implications that extend beyond the immediate issues that they address.

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The first of these players is the House of Lords. The European Union (Withdrawal) Bill is currently in Committee stage in the second chamber of the UK Parliament, involving line-by line scrutiny of the legislation. At present, the last of the committee days is scheduled for 28 March. Then comes Report stage, followed by Third Reading, both of which will provide further opportunities for the Lords to discuss and perhaps vote on alterations to the Bill. Current thinking seems to be that the Lords will have dealt with the bill by the beginning of May, potentially enabling it to have received Royal Assent and become a full Act of Parliament before the summer recess. However, since the Lords, not the government, is in control of its own timetable, this timescale cannot be taken for granted.

Whenever the Lords does finish with the Bill, it seems it will return to the Commons in a different form to the one it left the lower Chamber on 18 January 2018. Changes may come about on the initiative of the government in response to pressure, or because they are forced upon the government in the Lords, where the Conservatives are in a numerically even more precarious position than in the Commons.

While a majority of Peers supported ‘remain’ at the referendum, they feel constrained in the extent to which they can resist the Bill. As an unelected chamber, constitutional and political limitations create a reticence about being seen to oppose the perceived democratic mandates associated with both the referendum and the House of Commons. Consequently, many proposed amendments accept the Bill on its own terms, and are ostensibly intended to make the legislation perform its stated task more effectively and in more constitutionally acceptable ways.

However, some of the changes envisaged for the Bill go beyond its immediate terms of reference and would involve either a significant modification of the present way in which the government seeks to leave (for instance through committing it to maintaining participation in the Customs Union and Single Market), or the possibility of rejecting the terms of exit agreed between the EU and UK through an obligatory parliamentary vote or even a second referendum.

The next player under consideration, the House of Commons, will need to respond to any amendments the Lords may make, either accepting or rejecting them. Because it is elected, the Commons is established as the prime chamber within the UK Parliament. In this case, for procedural reasons, it will not be possible for the Commons to utilise its statutory power to override the Lords soon enough to be ready for exit from the EU. Nonetheless, the Lords is likely ultimately to give way if the Commons is insistent on removing amendments. The Commons, in turn, is restrained by party loyalties and a sense that it must be seen to abide by the referendum result.

Yet the Commons has already shown itself willing during the passage of the Bill to defeat the government on one occasion. An amendment of 13 December tabled by Dominic Grieve, the senior Conservative backbencher, requiring an exit arrangement to be authorised in a separate statute before the delegated powers envisaged under the EU Withdrawal Bill can be deployed to implement that agreement. The Commons might repeat this type of performance and uphold a Lords amendment regardless of whether the government wants to accept it. Indeed, the Lords may have voted for a particular amendment precisely because there was a sense in the Upper House that the Lower House was likely to find favour with it. In other words, the two chambers could prove mutually reinforcing in their growing willingness to resist the government and any supposed referendum mandate.

A further source of complication for the government involves the devolved institutions in Wales and Scotland, both of which have objected strongly to the European Union Withdrawal Bill as a centralising measure. Contention between them and the UK government has an ironic aspect, since the UK government, even as it insists on a withdrawal from the European Single Market, holds that the need to preserve the United Kingdom single market is a concern of overriding importance. Ministers at UK level have stressed the importance of retaining unified standards within the UK in arguing that a range of powers due to be repatriated from the EU should be held at the centre, rather than transferred to the devolved territories, even if they fall within areas that are defined as devolved.

Negotiations between the UK and the devolved governments are ongoing. The interests of Wales and Scotland are not identical in this matter. The former produced a ‘leave’ majority at the referendum, the latter a firm ‘remain’ vote; and their respective governments have differing attitudes regarding the desirability of remaining within the UK. But, significantly, Wales and Scotland have closely cooperated in the dispute over the European Union (Withdrawal) Bill, and are ready to bring forward continuity legislation of their own, adding to the sense of a principled constitutional argument, rather than simply a bilateral disagreement. It remains possible that one or more devolved legislatures will withhold the ‘legislative consent’ that has been deemed necessary for this Bill, and pass its own rival law. If legislative consent is denied, the UK government and Parliament will face a difficult choice about whether to proceed regardless and impose their law. To do so is the legal right of the UK Parliament, but would be politically controversial and divisive from the point of view of the Union.

A further dimension that cannot be overlooked and will impact upon the efforts of the UK government to facilitate Brexit is that of Ireland. An uncomfortable political reality is that a majority in Northern Ireland supported ‘remain’ on 23 June 2016; while within that vote there was a clear sectarian cleavage, with Catholics being overwhelmingly ‘remain’ supporters, and a smaller majority of Protestants voting ‘leave’. At present, devolution is not functional in Northern Ireland, meaning that issues involving the position taken by the Welsh and Scottish legislatures and executives do not arise in the same way. However, the potential of Ireland – encompassing Northern Ireland, the Republic, and the various groups within it – to alter the final outcome should not be overlooked.

Domestically, following the General Election of June 2017, the minority Conservative UK government is dependent for its continued existence upon the support of the Democratic Unionist Party (DUP) in the Commons. This internal position of reliance has external consequences. The need to placate the DUP has already created difficulties for Theresa May, during the first phase of negotiations with the EU, and connected problems could well return. Competing demands: to avoid a hard border and honour the agreement made with the EU on 8 December, to withdraw from the Customs Union and Single Market, and to sustain the parliamentary support of the DUP, may ultimately prove impossible for the May government to reconcile.

Any discussion of what might take place in Parliament, at devolved level, or elsewhere, is necessarily also intertwined with a consideration of the stances and condition of the political parties, especially the Conservatives and Labour. Conservative parliamentarians, especially in the Commons, who are concerned about the likely outcome of current government policy are constrained by party ties and a reluctance to undermine their own government and perhaps help bring about a Jeremy Corbyn premiership. However, as it becomes increasingly apparent that the UK faces the prospects of either a deal seriously inferior to EU membership or no agreement at all with the EU, their party loyalty will be seriously tested. But for a Conservative backbench uprising in the Commons to mean defeat for the government, the rebels will need others to vote with. The most plausible scenario in which the government suffers a meaningful loss over its EU policy is one in which the official Labour position has shifted at least to the point that it allows for the possibility of ending the process of departure, perhaps to be decided by another referendum.

What would follow such a defeat is unclear. But the possibilities include one or more of: Theresa May attempting to stay on with a different policy and perhaps restructured Cabinet; the formation of another minority Conservative government under a different premier; a coalition government; a further General Election; another European referendum; and at least the potential for a reversal of the decision to leave the EU. Whether any of theses scenarios transpire, and what they lead to ultimately, will have been the product of a combination of different interlinked processes and institutions. The true significance of the European Union (Withdrawal) Bill is as a part of that continuum.The UK political system contains within it many variable elements, all of which have been stirred by the Brexit process. The combination is volatile. Whatever plans the May government has, it faces not only the question of whether they are realisable in theory (a debatable proposition in itself), but whether competing pressures will enable them to be delivered in practice.

This post represents the views of the author and not those of the Brexit blog, nor the LSE. It is a shorter version of an article that first appeared on the Federal Trust.

Dr Andrew Blick isSenior Lecturer in Politics and Contemporary History, King’s College London and Senior Research Fellow, The Federal Trust.

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Roch Dunin-Wasowicz

7 Comments

The situation in N Ireland is rather complex; while the border areas voted Remain, the DUP heartlands of East Down and East Antrim voted Leave. However, along the North Down coast, known locally as the ‘Gold Coast’ and populated by distinctly well-to-do middle class professionals, the vote was Remain. This produced some wry, jocular comments about how an IRA ‘sleeper cell’ had been uncovered there.

Much more probable is that voting patterns were also influenced by education, with better educated voters, as elsewhere in the UK, voting Remain.

The position in Scotland is also very complex. There’s still only a 5% movement required in opinion to give a majority for independence with demographics delivering an increase in support for independence every year.

EU membership was a big part of the Scottish referendum and indeed one of the reasons I actively campaigned for a No vote was because I thought independence would put Scotland’s EU membership at risk. HM Government sent a leaflet to every home in Scotland making precisely this point.

A power grab by Westminster is obviously legal possible but would be highly unwise in this combustible environment.

This is a granular political analysis of the Brexit process which concentrates almost exclusively on the Westminster dynamics over current legislation. The only insight we are offered of the broader national political context is some inclusion of the devolved assemblies political leverage to halt or at least modify the government programme on Brexit . The political impact of the EU negotiating stance is not even mentioned. Public opinion is not mentioned.

Absent these broader considerations this is an incomplete political analysis – selective even.

It is impossible to claim that voters did not understand what leave meant. It did not mean remaining in the single market (or the customs union) as this would entail accepting EU legislation without even the ability to influence the framing of that legislation as members. This was shouted from the rooftops by remain campaigners as well as by leave campaigners. “Bring back control” was not an ambiguous slogan and it takes an Orwellian scale of revisionism to rewrite that as bring back control…. er….except for EU legislation, ECJ judicial supremacy, continued contributions to the EU budget, free movement or the right to negotiate our own trade treaties. MP’s, the Lord’s and the devolved assemblies are taking very large political risks if they obstruct Brexit on so radically implausible an interpretation of the public vote.

Secondly there is the matter of domestic electoral politics. If the 2016 referendum had been filtered through a first past the post constituency based vote then the equivalent share of Parliamentary seats won by leave would have been 65% not 52% . The overwhelming bulk of conservative seats voted leave. Seven out of ten Labour constituencies voted leave. As for the devolved assemblies even in pro remain Scotland a majority of SNP voters voted leave and Wales strongly voted leave. All of which explains why remain supporting M.P.’s from both major parties fought the last election on manifesto’s that promised to leave both the single market and the customs union. Their reward was to harvest 88% of the vote – a reversal of the political fragmentation currently occurring throughout continental Europe. For Parliamentarians to walk away from their own manifesto’s in order to nullify or neuter the referendum would therefore be an act fraught with political risk.

Thirdly – remainers come far too late to the cause of Parliamentary sovereignty to be at all convincing in their newly discovered fervour for the prerogatives of Parliament. None of this enthusiasm was demonstrated by remainers when EU laws were imposed without any regard to Parliamentary opinion. Some may interpret this sudden remainer conversion to Parliamentary sovereignty as an exercise in cynical opportunism – a desperate last ditch attempt to exploit the fact that we still have a rump cavalier Parliament in an overwhelmingly roundhead country.

Both Houses of Parliament voted to hold a referendum (544 voted for whilst 53 voted against).

In June 2016 the referendum was held and 52% voted leave whilst 48% voted remain. The majority was 1.4 million voters.

In February 2017 both houses of Parliament voted to invoke A50 by 498 to 114 (a majority of 384 ).

There is no plausible basis for the claim that there is no Parliamentary authority for leaving the EU.

These are the forces of political gravity which mitigate against an insiders putsch at Westminster. If a combination of Lords and remainer M.P.’s vote down the legislation the government will probably resign. A minority Labour government in these circumstances would be a poison chalice for the party (as they could not rely on the votes of Tory rebels) and they would be in an impossible position with regard to the negotiations with the Commission. So – a vote to hold an unscheduled election. For the conservatives the platform will write itself (& their rebels deselected) but for a Labour party to repeal its previous manifesto and justify precipitating another general election on a platform of remaining in the customs union (& possibly the single market ) against the measured preference of 70% of its own constituency vote and against the known preferences of its own leadership would surely be suicidal. As for the Lords – well they could not hope to survive the fallout.

The messages from Labour recently sent by Thornbury (we will end up voting in favour of a blah blah trade deal) and Gardiner (the b*ll*cks comment on one of the six labour tests) indicate that Labour’s Parliamentary manoeuvres will not be allowed to get out of control……

It is impossible to claim that voters did not understand what leave meant.

It most certainly is not. Brexit means Brexit, we were told; but had to find out what it meant. It meant leaving the single market, something that leavers said we were not going to do. It meant leaving Euratom; that was not even put to the electorate, never discussed, and few beyond anoraks, nerds, nuclear physicists, radiologists and oncologists would have understood what it is. And the EMA? And Open Skies?

So many of these questions weren’t put; it was all about ‘control’ of the borders and immigrants. The problems around the Good Friday/Belfast agreement were well understood in N Ireland, but nowhere else. Brexit is and was primarily a product of English nationalism and exceptionalism. Brexit was also seized on as a political tool by the DUP and the present foreign secretary for personal advancement and in the expectation that Remain would win.

And the Irish Border? How, if Brexit was about ‘control’ is it to be ‘controlled’? Or will it be left open? What of the two large areas where there is presumably a border but it’s not marked on any map because there is no consensus about it? How do you ‘control’ something that you don’t know where it is?

I’m someone who spent a long term working in an economics team in a government economic development agency dealing with the EU and has spent a further decade running a business which makes use of EU trade deals and the Single Market.

However I had no idea what Leave meant at the time of the referendum. The complexity of it is such that I’m still not clear.

The debate during the referendum was particularly poor, indeed voters exposed to the campaign would be likely to be less informed after it than before the debate.

As I’ve said before, I believe it would have been a better referendum had there been a second question on Single Market membership which was repeatedly promised by leaders of the Leave campaign but which the result leaves us unclear on.

Well, Andrew, I think A.J. Maher put it correctly. The problem is in your kind of thinking. This kind of thinking is not unusual, that’s why there is still such strident resistance to the implementation of Brexit. As we know, the referendum was called not to give the UK electorate a say in this matter, but due to inner Tory party politics. All along the campaign by the Cameron cabinet, the bureaucracy and the whole gamut of pro-EU vested and moneyed interests was based on the premise that people would vote Remain. The vote in the Brexit referendum was never meant to be a neutral affair and a fair fight in which people could make up their own mind after an extensive and balanced debate. Remainders who continue carping drag the dregs of useless and pointless arguments out of the mire of this political bog in order to convince themselves they were somehow robbed of their just Remain main course and peaches and cream desert.
Well, it matters not which way it goes, there is a political lesson here which diehard EU-lovers will not forget. The lesson is that Leavers knew very well what they voted for. That Leavers voted Out in the face of a taxpayer/state-funded government campaign lacking in integrity and honesty as to make one think they were barracking for Leave. The point is, so many people are taken in by dishonest and manipulative politicking on the part of pro-globalisation pro-European federation they have lost any semblance of right and wrong.
Now for your gripe that you didn’t know what Brexit was about, it did say so on the package, but you choose to not put two and two together. The then government had no intention for the UK to leave the EU, so made no plans. The governments post-Cameron, May and May, had and have no intention of executing Brexit as per the referendum, that much has been obvious since, roughly, May last year. Mrs May and her crew have been stalling, prevaricating and doing everything during her one long political pantomime to spike Brexit without admitting it, quite the contrary. So yes, some planning for a soft Brexit has had to be commenced.
You yourself, evidently, did no planning at all. You are running a business? Maybe not for much longer. The government gave the people a choice. The choice was made. The governments then and since have been and are doing everything in their might to turn back the clock. It’s like declaring war, but not planning for it. The people, of whatever political persuasion, who are working to undermine the result of this referendum have not the slightest inkling of the reactive energies they are busy letting loose. Democracy in Britain, and Europe, is not dead by a long shot. If democracy is to die in Europe, just imagine the civil war it will take do make it happen.

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